Citation Nr: 9905223
Decision Date: 02/25/99 Archive Date: 03/03/99
DOCKET NO. 97-27 340 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for chronic acquired
lung, acne, gastrointestinal, and sexual disorders as
secondary Agent Orange (AO) exposure.
2. Entitlement to an evaluation in excess of 30 percent for
post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
INTRODUCTION
The veteran served on active duty from August 1965 to August
1967.
The claims file contains a report of a rating decision dated
in June 1981 wherein entitlement to service connection for
hearing loss was denied.
On file is a report of a rating decision dated in September
1988 wherein entitlement to service connection for tinnitus
was denied. In January 1989 the prior denial of entitlement
to service connection for hearing loss was affirmed. The
veteran timely filed a notice of disagreement with the
September 1988 determination and was issued a statement of
the case as to the denials of service connection for both
tinnitus and hearing loss. A substantive appeal was not
filed.
The current claim for service connection for residuals of
exposure to AO and an increased evaluation for PTSD was filed
on February 29, 1996.
The current appeal arose from a June 1996 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Oakland, California. The RO denied entitlement to
increased evaluations for PTSD and a low back wound with
retained metallic fragment, and determined that new and
material evidence had not been submitted to reopen a claim of
entitlement to service connection for tinnitus. In August
1996 the RO denied entitlement to service connection for
chronic acquired lung, acne, gastrointestinal, and sexual
disorders as secondary to AO exposure, and affirmed the
denial of entitlement to an increased evaluation for PTSD.
In his October 1996 notice of disagreement, the veteran made
clear that he was appealing the denial of entitlement to
service connection for chronic acquired lung, acne,
gastrointestinal and sexual disorders as secondary to AO
exposure, an increased evaluation for PTSD, and the
determination that new and material evidence had not been
submitted to reopen a claim of entitlement to service
connection for tinnitus. He also made reference to service
connection for hearing loss. The RO noted his notice of
disagreement as having been accepted as to all issues except
with respect to service connection for hearing loss.
In a May 1997 letter to the veteran the RO acknowledge their
acceptance of the veteran's notice of disagreement as to the
denial of service connection for multiple disorders as
secondary to AO exposure, whether new and material evidence
had been submitted to reopen a claim of entitlement to
service connection for tinnitus, and an increased evaluation
for PTSD, but that his appeal rights as to the previous
denial of service connection for hearing loss had expired.
However, the RO's statement of the case issued in July 1997
was limited to the denial of service connection for multiple
disorders as secondary to AO exposure, and an increased
evaluation for PTSD.
In September 1997 the RO affirmed the previous denial of
entitlement to service connection for multiple disorders as
secondary to AO exposure, and granted entitlement to an
increased evaluation of 30 percent for PTSD effective
February 29, 1996. In correspondence to the veteran dated in
October 1997, the RO advised the veteran they had notified
him in their February 1989 letter that they were unable to
grant service connection for hearing loss and in June 1996
that they were unable to grant service connection for
tinnitus. It was requested that the veteran provide material
evidence pursuant to reopening of the previously denied
claims.
In a January 1998 statement on file the veteran affirmed his
interest in obtaining service connection for multiple
disorders as secondary to AO exposure, an increased
evaluation for PTSD, and service connection for hearing loss
and tinnitus.
The issues of whether new and material evidence has been
submitted to reopen a claim of entitlement to service
connection for tinnitus and entitlement to an increased
evaluation for PTSD are addressed in the remand portion of
this decision.
FINDING OF FACT
The claim of entitlement to service connection for chronic
acquired lung, acne, gastrointestinal, and sexual disorders
as secondary to AO exposure is not supported by cognizable
evidence showing that the claim is plausible or capable of
substantiation.
CONCLUSION OF LAW
The claim of entitlement to service connection for chronic
acquired lung, acne, gastrointestinal, and sexual disorders
as secondary to AO exposure is not well grounded.
38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The service medical records show that the veteran reported a
history of shortness of breath when he completed the report
of medical history portion of the preinduction physical
examination conducted in April 1965. The report of general
medical examination in this regard was negative for any
pertinent abnormalities. The remainder of the service
medical records including the July 1967 report of general
medical examination for separation from active service
contain no evidence or findings of chronic acquired lung,
acne, gastrointestinal, or sexual disorders.
The veteran's record of service (DD-214) shows he trained as
a radio operator and served a tour of duty with the United
States Army in Vietnam. His decorations include a Purple
Heart, Combat Infantryman's Badge, Vietnam Service Medal, and
Vietnam Campaign Medal.
The March 1981 VA general medical examination of multiple
body systems contains no evidence or findings of chronic
acquired lung, acne, gastrointestinal, or sexual disorders.
On file are private treatment reports pertaining to inpatient
and outpatient treatment of the veteran beginning in 1989.
Hospitalization in December 1989 was for a perforated
prepyloric ulcer, possible chronic gastric outlet obstruction
secondary to peptic ulcer disease. The record noted he had a
15 to 16 year history of ulcer disease. His medical history
was noted as negative for any other serious medical problems.
Additional treatment reports pertaining to treatment of
gastrointestinal symptomatology are on file.
Criteria
Service connection may be established for a disability
resulting from personal injury or disease contracted in the
line of duty or for aggravation of preexisting injury or
disease contracted in the line of duty. 38 U.S.C.A. § 1110
(West 1991).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (1998).
If not shown during service, service connection may be
granted for peptic ulcer disease if disabling to a
compensable degree during the first post service year.
38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1998);
38 C.F.R. §§ 3.307, 3.309 (1998).
In addition to law and regulations regarding service
conection, the Board notes that a disease associated with
exposure to certain herbicide agents listed in 38 C.F.R.
§ 3.309 (1998) will be considered to have been incurred under
the circumstances outlined in that section, even though there
is no evidence of such disease during such period of service.
38 C.F.R. § 3.307(a) (1998).
If a veteran was exposed to an herbicide agent during such
active military, naval, or air service, the following disease
shall be service-connected if the requirements of 38 C.F.R.
§ 3.307(a)(6) (1998) are met, even though there was no record
of such disease during service, provided further that the
rebuttable presumption provisions of 38 C.F.R. § 3.307(d)
(1998) are also satisfied; chloracne or other acneiform
disease consistent with chloracne, Hodgkin's disease, non-
Hodgkin's lymphoma, porphyria cutanea tarda, multiple
myeloma, respiratory cancers (cancers of the lung, bronchus,
larynx or trachea), and soft tissue sarcoma. 38 C.F.R.
§ 3.307(e) (1998).
These diseases shall become manifest to a degree of 10
percent or more at any time after service, except that
chloracne, or some other disease consistent with chloracne,
and porphyria cutanea tarda shall have become manifest to a
degree of 10 percent or more within a year, and respiratory
cancers within 30 years, after the last date on which the
veteran was exposed to an herbicide agent during active
military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii)
(1998).
The Secretary has also determined that there was no positive
association between exposure to herbicides and any other
condition for which he has not specifically determined a
presumption of service connection is warranted. 59 Fed. Reg.
57, 589 (1996) (codified at 38 C.F.R. §§ 3.307, 3.309).
Effective November 7, 1996, presumptive service connection is
warranted for two additional diseases under § 3.309(e); acute
and subacute peripheral neuropathy, and prostate cancer. 61
Fed. Reg. 57,589 (1996) (codified at 38 C.F.R. §§ 3.307,
3.309).
When a disease is first diagnosed after service, service
connection may nevertheless be established by evidence
demonstrating that the disease was in fact "incurred"
during the veteran's service. 38 C.F.R. § 3.303(d); Combee
v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ("[p]roof of
direct service connection...entails proof that exposure
during service caused the malady that appears many years
later"); Cosman v. Principi, 3 Vet. App. 503, 505 (1992)
("even though a veteran may not have had a particular
condition diagnosed in service, or for many years afterwards,
service conection can still be established"); Godfrey v.
Derwinski, 2 Vet. App. 352, 356 (1992).
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well grounded
claim; that is, a claim which is plausible and meritorious on
its own or capable of substantiation. If he has not, his
appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78 (1990).
Case law provides that although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence. A claimant may submit some supporting evidence
that justifies a belief by a fair and impartial individual
that the claim is plausible. Dixon v. Derwinski, 3 Vet.
App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis), of an incurrence or aggravation of a disease or
injury in service (lay or medical evidence), a nexus between
the in-service injury or disease and the current disability
(medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995).
Where the determinative issue involves the question of a
medical diagnosis or causation, only individuals possessing
specialized training and knowledge are competent to render a
medical opinion. Espiritu v. Derwinski, 2 Vet. App. 192
(1992).
In determining whether a claim is well grounded, the
claimant's evidentiary assertions are presumed true unless
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19, 21 (1993).
The United States Court of Veterans Appeals (Court) has held
that if an appellant fails to submit a well grounded claim,
VA is under no duty to assist him/her in any further
development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1994); Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1998).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1998).
Analysis
Section 5107 of Title 38, United States Code unequivocally
places an initial burden upon the claimant to produce
evidence that his claim is well grounded; that is, that his
claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139
(1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993).
Because the appellant has failed to meet this burden, the
Board finds that his claim for service conection for chronic
acquired lung, acne, gastrointestinal, and sexual disorders
as secondary to AO exposure must be denied as not well
grounded.
Where the determinative issue involves causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is possible or plausible is required. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not
meet this burden by merely presenting his lay opinion because
he is not a medical health professional and does not
constitute competent medical authority. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Consequently, his lay
assertions cannot constitute cognizable evidence, and as
cognizable evidence is necessary for a well grounded claim,
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the absence
of cognizable evidence renders a veteran's claim not well
grounded.
Turning to the veteran's claim for service connection for
chronic acquired lung, acne, gastrointestinal and sexual
disorders as secondary to AO exposure, the Board notes that
such disorders were not shown in the veteran's service
medical records. Clinical evidence of a chronic acquired
gastrointestinal disorder was not reported until more than 20
years following the veteran's period of service. The
evidentiary record does not show that the veteran has chronic
acquired lung, acne, or sexual disorders linked to his period
of active service, much less as secondary to AO exposure.
The veteran's claim that his post service reported
gastrointestinal disorder is secondary to AO exposure is
predicated upon his own unsubstantiated lay opinion. He has
not submitted competent medical evidence linking his post
service gastrointestinal disability to AO exposure, nor in
support of his claim that he has chronic acquired lung, acne,
and sexual disorders as secondary to AO exposure.
The veteran is clearly asserting a fact well beyond his
competence. King v. Brown, 5 Vet. App. 19, 21 (1993). As it
is the province of trained health care professionals to enter
conclusions which require medical opinions as to causation,
Grivois, the veteran's lay opinion is an insufficient basis
upon which to find this claim well grounded. Espiritu.
Accordingly, as a well grounded claim must be supported by
evidence, not merely allegations, Tirpak, the veteran's claim
for service connection for chronic acquired lung, acne,
gastrointestinal, and sexual disorders as secondary to AO
exposure must be denied as not well grounded. The Board
notes that the veteran does not have any disorder recognized
by VA as secondary to AO exposure.
The Board further finds that the RO has advised the veteran
of the evidence necessary to establish a well grounded claim,
and the veteran has not indicated the existence of any post
service medical evidence that has not already been obtained
that would well ground his claim. McKnight v. Gober, 131
F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997).
As the veteran's claim of entitlement to service conection
for chronic acquired lung, acne, gastrointestinal and sexual
disorders as secondary to AO exposure is not well grounded,
the doctrine of reasonable doubt has no application to his
case.
ORDER
The veteran not having submitted a well grounded claim of
entitlement to service connection for chronic acquired lung,
acne, gastrointestinal, and sexual disorders, the appeal is
denied.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The Board's review of the evidentiary record discloses the VA
examiner acknowledged that he did not have the veteran's
claims file available for review pursuant to his examination
of the veteran in July 1997. This fact renders the subject
examination inadequate for rating purposes. See e.g.,
38 C.F.R. § 4.1 (1998) ("It is...essential both in the
examination and in the evaluation of the disability, that
each disability be viewed in relation to its history.") See
also Green v. Derwinski, 1 Vet. App. 121, 124 (1991)
("[F]ulfillment of the statutory duty to assist...includes
the conduct of a thorough and contemporaneous medical
examination, one which takes into account the records of
prior medical treatment, so that the evaluation of the
claimed disability will be a fully informed one." (emphasis
added)). Accordingly, further development is warranted.
As the veteran filed a notice of disagreement with the June
1996 rating decision wherein the RO, among other things,
determined that new and material evidence had not been
submitted to reopen a claim of entitlement to service
connection for tinnitus, this issue has been placed in
appellate status and requires issuance of a statement of the
case. Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v.
Brown, 9 Vet. App. 124 (1996).
Therefore, in accordance with VA's duty to assist the veteran
in the development of facts pertinent to his claim under
38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1998), the
Board is deferring adjudication of the issue of entitlement
to an increased evaluation for PTSD pending a remand of the
case to the RO for further development as follows:
1. The RO should request the veteran to
identify the names, addresses, and
approximate dates of treatment for all
health care providers, VA and non-VA,
inpatient and outpatient, who have
treated him for PTSD since July 1997.
After obtaining any necessary
authorization or medical releases, the RO
should obtain and associate with the
claims file legible copies of the
veteran's complete treatment reports from
all sources identified whose records have
not previously been secured. Regardless
of the veteran's response, the RO should
secure all outstanding VA treatment
reports.
2. The RO should arrange for a VA
special psychiatric examination of the
veteran to ascertain the nature and
extent of severity of his PTSD.
The claims file, a separate copy of this
remand, and copies of the previous and
amended criteria for rating psychiatric
disorders should be made available to and
reviewed by the examiner prior and
pursuant to conduction and completion of
the examination and the examination
report must be annotated in this regard.
The examiner should identify all of the
veteran's associated symptomatology in
order to determine the impairment caused
by PTSD. If there are other psychiatric
disorders found, in addition to PTSD, the
examiner should specify which symptoms
are associated with each disorder(s). If
certain symptomatology cannot be
dissociated from one disorder or another,
it should be so indicated. If a
psychiatric disorder(s) other than PTSD
is or are found on examination, the
examiner should specify which symptoms
are associated with each disorder(s). If
certain symptomatology cannot be
dissociated from one disorder or another,
it should be so indicated.
If a psychiatric disorder(s) other than
PTSD is or are found on examination, the
examiner should offer an opinion as to
whether any such disorder is causally or
etiologically related to PTSD, and, if
not so related, whether the veteran's
PTSD has any effect on the severity of
any other psychiatric disorder. Any
necessary special studies, including
psychological testing, should be
accomplished. During the course of the
examination, the examiner should identify
all of the symptoms or manifestations of
the veteran's PTSD.
Following evaluation, the examiner should
provide a numerical score on the Global
Assessment of Functioning (GAF) Scale
provided in the Diagnostic and
Statistical Manual for Mental Disorders,
in relation to the veteran's impairment
from PTSD. The examiner must include a
definition of the numerical GAF score
assigned, as it relates to the veteran's
occupational and social impairment.
If the historical diagnosis of PTSD is
changed following examination, the
examiner should state whether the new
diagnosis represents progression of the
prior diagnosis, correction of an error
in the prior diagnosis, or development of
a new and a separate condition. The
examiner must express an opinion as to
the impact of PTSD on the veteran's
social and occupational functioning. Any
opinions expressed must be accompanied by
a complete rationale.
3. Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed.
In particular, the RO should review the
requested examination report and required
opinions to ensure that they are
responsive to and in complete compliance
with the directives of this remand and if
they are not, the RO should implement
corrective procedures. Stegall v. West,
11 Vet. App. 268 (1998).
4. After undertaking any development
deemed essential in addition to that
specified above, the RO should
readjudicate the issue of entitlement to
an increased evaluation for PTSD.
5. The RO should issue a statement of t
he case as to the determination that new
and material evidence had not been
submitted to reopen a claim of
entitlement to service connection for
tinnitus. The veteran should be notified
of his right to file a substantive appeal
in this regard.
If the benefit requested on appeal is not granted to the
veteran's satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded. Thereafter, the case should be
returned to the Board for final appellate review, if
otherwise in order. By this remand, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran until he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
Department of Veterans Affairs